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Petitions of the week

Equal protection in Virginia and free exercise in Maine

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, whether Title IX and equal protection require a school district to allow transgender students to use the restrooms of their gender identities and whether free exercise and equal protection require a Maine tuition assistance program to support parents’ interests in sending their children to religious schools.

In 2016, the Supreme Court granted and set for argument Gloucester County School Board v. G.G. In that case, the U.S. Court of Appeals for the 4th Circuit had ordered a Virginia school board to allow Gavin Grimm, a transgender boy, to use the multi-user boys’ restrooms at his high school. However, after the Trump administration withdrew the U.S. Department of Education opinion letter issued during the Obama administration that had formed the basis of the 4th Circuit’s decision, the Supreme Court sent the case back to the lower courts.

On remand, the 4th Circuit affirmed the district court’s rulings that the school board’s policy violated Title IX of the Civil Rights Act and the equal protection clause of the 14th Amendment. On Title IX, the 4th Circuit extended Bostock v. Clayton County, Georgia ­– in which the Supreme Court last year ruled that firing an individual for being transgender was sex discrimination under Title VII – on the ground that it was “impossible to discriminate against a person for being … transgender without discriminating against that individual based on sex.” On equal protection, the 4th Circuit ruled that the board’s “policy was not substantially related to its purported goal” because the “bodily privacy of cisgender boys using the boys’ restroom did not increase when Grimm was banned from those restrooms.”

In Gloucester County School Board v. Grimm, the school board asks the justices to review the 4th Circuit’s decision. Since that decision, the Biden administration has issued an executive order, rooted in the equal protection clause, stating that Title IX “prohibit[s] discrimination on the basis of gender identity.”

Carson v. Makin involves a challenge of religious freedom and equal protection to a Maine tuition assistance program. Under the program, school districts that do not operate a secondary school pay tuition at the approved school of the parent’s choice. Although parents may choose some schools with religious affiliations, they may not choose those that the Maine Department of Education deems “sectarian” in that they promote faith or present their teaching through a faith-based lens. In last year’s Espinoza v. Montana Department of Revenue, the Supreme Court ruled that Montana could not exclude religious schools from a tuition assistance program. However, the U.S. Court of Appeals for the 1st Circuit distinguished Espinoza on the ground that the Maine program does not turn on religious “status,” but “use,” and that use restrictions are not subject to the same strict scrutiny as are status limitations. The Carsons, wanting to send their daughter to Bangor Christian School, ask for the justices’ review.

These and other petitions of the week are below:

Dunn v. Reeves
Issue: Whether the U.S. Court of Appeals for the 11th Circuit violated 28 U.S.C. § 2254(d) by readily attributing error to the state court in violation of Woodford v. Visciotti.

Carson v. Makin
Issue: Whether a state violates the religion clauses or equal protection clause of the United States Constitution by prohibiting students participating in an otherwise generally available student-aid program from choosing to use their aid to attend schools that provide religious, or “sectarian,” instruction.

Jones v. United States
Issue: Whether 18 U.S.C. § 514(a) — which prohibits the use of “any false or fictitious instrument, document, or other item appearing, representing, purporting, or contriving through scheme or artifice, to be an actual [government] security or other financial instrument” — prohibits only the use of nonexistent types of documents and instruments (as the U.S. Courts of Appeals for the 5th, 6th, 8th and 9th Circuits have held), or whether it also covers the use of fake versions of actual, existing types of documents and instruments (as the U.S. Courts of Appeals for the 11th and, in this case, 2nd Circuit have held).

Just Energy Marketing Corp. v. Hurt
Issue: Whether, as the U.S. Court of Appeals for the 2nd Circuit held, Just Energy Marketing Corp.’s door-to-door solicitors are exempt “outside salesmen” under the Fair Labor Standards Act or, as the U.S. Court of Appeals for the 6th Circuit held, the door-to-door solicitors are not exempt “outside salesmen” under the FLSA because the sales agreements remain subject to regulatory checks and Just Energy Marketing Corp.’s ultimate approval.

Haws v. Idaho
Issue: Whether a criminal defendant’s purported waiver of the right to appeal in a plea agreement is knowing, intelligent and voluntary—as required by the due process clauses of the Fifth and 14th Amendments—when the trial court incorrectly informs the defendant, during the colloquy in which the court accepts the defendant’s guilty plea, that the defendant has reserved the right to appeal.

Gloucester County School Board v. Grimm
Issue: Whether Title IX or the equal protection clause requires schools to let transgender students use multi-user restrooms designated for the opposite biological sex, even when single-user restrooms are available for all students regardless of gender identity.

Recommended Citation: Andrew Hamm, Equal protection in Virginia and free exercise in Maine, SCOTUSblog (Mar. 5, 2021, 3:55 PM),